Baylor ordered to turn over records from sexual assault investigation

A federal judge has ordered Baylor University to hand over recordings, notes and other key documents from its infamous Pepper Hamilton investigation.

Author:
Matthew Watkins, The Texas Tribune , KCEN

Published:
5:15 PM CDT August 11, 2017

A federal judge has ordered Baylor University to hand over recordings, notes and other key documents from its infamous Pepper Hamilton investigation, which found that Baylor repeatedly mishandled allegations of sexual assault that were made against football players and other students.

The documents must be given to attorney and former state Rep. Jim Dunnam, who is representing multiple anonymous women who say there were raped while at Baylor. The university had claimed that the documents were privileged, since the firm Pepper Hamilton that was conducting the investigation was doing legal work for the private Baptist school. But the judge ruled that Baylor waived that privilege when it released certain details from the investigation.

It's not immediately clear whether the documents will ever be fully public. District Judge Robert Pitman said information produced as a result of his order "shall be subject to protective orders already entered in this case when applicable." Certain logs produced, he wrote, will be considered "classified."

But this means that they could come up in a trial if the two sides in the lawsuit chose not to settle. Baylor has vigorously fought to keep the documents privileged in past court filings.

Minutes after the ruling was released, Baylor officials said they were still reviewing it and couldn't immediately comment.

Baylor hired Pepper Hamilton in 2015 after the trial of former football player Sam Ukwuachu, who was accused of raping another student. After Pepper Hamilton's investigation was complete, Baylor released a 13-page document listing the findings, plus a list of recommendations for how to improve its processes. That release, the judge ruled, waived Baylor's attorney-client privilege.

Now, Baylor must turn over documents that it provided Pepper Hamilton for its investigation. But some correspondence between the firm and the university can still be held back. Those are mostly communications in which some kind of analysis or advice was provided.

Upon the release of the Pepper Hamilton findings of fact, Baylor fired its football coach, Art Briles, and reassigned its president, Ken Starr, who later left the school entirely. Regents later reported that 19 football players had been involved in sexual violence since 2011. A legal filing in a separate lawsuit alleges that the number is even higher.

The school remains under investigation by the Big 12 Conference, the U.S. Department of Education's Office of Civil Rights and the Texas Rangers. The school has hired a new football coach, athletic director and president since the scandal broke. It also has a new board chairman, and says it has implemented all of the reforms recommended by Pepper Hamilton.

But the lawsuits have ensured that the scandal will stay in the spotlight. Damaging news has continued to trickle out in public filings, especially from Dunnam's lawsuit. A deposition made public in June revealed that former Interim President David Garland was unaware of many of the details of the scandal.

And e-mails disclosed later that month showed that the Baylor oversight board's former chairman, Austin lobbyist Buddy Jones, described female students who he suspected of drinking alcohol at parties as “perverted little tarts,” the “vilest and most despicable girls” and a “group of very bad apples." Jones has apologized for those statements.

Disclosure: Baylor University has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

UPDATE FROM BAYLOR: The University's Vice President for Marketing and Communications and Chief Marketing Officer Jason Cook released the following statement on Twitter:

"Baylor recognizes this is a complex order, and the university appreciates the court's ruling that attorney work product privileges continue to apply in this case. All of the work product and related materials prepared by Pepper Hamilton is currently protected from discovery, with the provision of the university being required to produce a detailed log of certain work product and to identify witnesses who were interviewed. Baylor continues to express concerns regarding the protection of students' personal records, specifically the desire of many students -- who are unrelated to this case -- that their identities remain anonymous and their information confidential."